Articles Tagged with Evidence

The CAAF held that there is no right of confrontation at sentencing.  The other rules do apply, such as hearsay, unless you relax the rules (something I rarely if ever do).  United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001); United States v. George, 52 M.J. 259 (C.A.A.F. 2000).

The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled "Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence" and is available here via the Florida Law Review.  Here is the abstract:

After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation.  One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing.

As Prof. Colin Miller TG points out in a new post, Fed. R. Evid. 804(b)(6), applies to both sides.  The Mil. R. Evid. contains the same language.

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For an example of a case in which the government forfeited its right to object to the defendant’s admission of hearsay from a declarant whom the government rendered unavailable, consider the recent opinion of the Ninth Circuit in United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. 2012).

Prof. Miller concludes:

Well, I use Wikipedia for research.  But, I use it “in some limited situations . . . for getting a sense of a term’s common usage."  Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information).

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011),   Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads”  The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").). 

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

Impeachment with conviction.

Mil. R. Evid. 609(b) issues of impeachment with a prior conviction rarely come up at court-martial.  But if there were to be a prior conviction there may be some interpretation necessary.  So parsing several posts of Prof. Colin Miller the Great at Evidence Prof Blog, here we go.

If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Eleventh Circuit sidestepped the most interesting issue in the case.

Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year.

  1. Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions
  2. Confrontation Clause: More Notice and Demand Rules?
  3. Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations
  4. Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause
  5. Circuit Split: Admission Of Pre-Miranda Silence
  6. Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?
  7. More Judicial Criticism of the “Inextricable Intertwinement" Theory
  8. Rule Amendments: “Restyling” Federal Rules of Evidence
  9. Pending Rule Amendment: FRE 803(10) – Absence of Public Record
  10. Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings

On item 8., which will depend on how the President “adopts” the restyling.  Interesting that there may be issues surrounding implementation of the restyled rules.

The FRE were “restyled” by amendments effective December 1, 2011. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. As the restyled rules are applied, one question will be whether language differences in the new version result over time in substantive modifications.

Waive it or raise it at work – and at a court-martial under the UCMJ.

Judge Ed Carnes for the Eleventh Circuit in United States v. Rodriguez, No. 08-16696, Dec. 22, 2010:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

An important change to the Federal Rules of Evidence begins today.  That means, absent Presidential action, the rule will take affect in the military no later than 18 months from now.  This is a significant change requiring the prosecution to corroborate statements against penal interest.

On December 1, 2010, a new amendment to the Federal Rules of Evidence takes effect. The rule concerns the admission of statements against interest under FRE 804(b)(3) has been amended so that the corroborating circumstances requirement for admission of a declaration against interest applies to statements against penal interest introduced by the government as well as those by the defendant in criminal cases. This requirement previously applied to statements introduced by the defendant.

See Mil. R. Evid. 1102.  Thanks to FederalEvidenceReview for the reminder.

Professor Colin Miller uses an Alabama case to remind us that a prior misdemeanor conviction is not admissible under Rule 609(a).

Under this Rule, then, it is clear that a party cannot impeach a witness through evidence that the witness has a prior misdemeanor conviction for a crime not involving dishonesty or false statement. But does a witness open the door for such impeachment by testifying that he only completed the Eleventh grade if the reason that he did not complete his high school education was the conviction? According to the recent opinion of the Court of Criminal Appeals of Alabama in Beemon v. State, 2010 WL 4380238 (Ala.Crim.App. 2010), the answer is "no."

The prosecution had argued that the accused’s testimony had “opened the door.”  The appeals court also rejected that basis for admission.  Of interest though, for trial counsel, and for defense counsel to be looking out for, was this part of the court’s opinion.

My good friend Bill Cassara and I have done a lot of BAH/TCS fraud cases at court-martial under the UCMJ over the years.  Typically the case involves a lot of documents from DFAS. The prosecution then calls a witness from DFAS to lay a foundation for the documents and then has the witness testify as to what the documents mean in terms of monies claimed and paid compared to the legal entitlements.  Because these documents are of many pages the witness typically prepares a chart which summarizes the documents and the bottom lines.  There is nothing wrong with that so long as the underlying documents are admissible (usually as business records and documents prepared and submitted by the accused), the chart is an accurate representation of the documents, and the witness who prepared the chart or summary is available for cross-examination.

The case of United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. Feb. 8, 2008) (Nos. 06-3088, 06-3089, 07-3016), noted by federalevidence.com, reminds us of this point.

Cross-examination might expose errors or inconsistencies in the chart.  At which point the parties can refer to the original documents if necessary.  Assuming the errors or inconsistencies are identified and cross-examined on the testimony is then judged as to its weight not admissibility.

MAJ Hasan’s UCMJ Article 32 hearing and likely court-martial is drawing and will continue to draw lots of attention — of course, duh.  But just as we have seen in other high profile cases there are opportunities for what I call teachable moments.  Here are two from the item posted by CAAFLog about the witness who was ordered to destroy a video of the shooting he made on his cellphone.  Forget the rhetoric about whether or not the Army was engaged in a cover-up.

1.  Contemporaneous video’s and photos can provide vital evidence for both sides.

Nixon said he remembered Hasan because of “his stature and just how he composed himself — stoic.”

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